Metropolitan Dade County v. Barry

• Decision Date: 02 March 1993
• Docket Number: No. 91-3685,91-3685
• Citation: 614 So.2d 666
• Parties: 18 Fla. L. Weekly D629 METROPOLITAN DADE COUNTY, Appellant, v. Rachel L. BARRY, Appellee.
• Court: Florida District Court of Appeals

Page 666

614 So.2d 666

18 Fla. L. Weekly D629

METROPOLITAN DADE COUNTY, Appellant, v. Rachel L. BARRY, Appellee.

No. 91-3685.

District Court of Appeal of Florida First District.

March 2, 1993.

Robert A. Ginsburg, County Atty., Douglas W. Rice, Asst. County Atty., Miami, for appellant.

Jeffrey S. Breslow, Miami, for appellee.

MICKLE, Judge.

This appeal is from an order of the judge of compensation claims denying the employer's motion to stay entry of a final order and reopen the hearing for newly discovered evidence. We reverse and remand for a hearing.

On December 29, 1989, Rachel Barry was struck by a car in the course and scope of her employment as a bus driver for Metropolitan Dade County. She filed a claim for workers' compensation benefits on the ground she suffered injuries to her head and neck as a result of the accident. Barry experienced epileptic-type seizures after the accident.

A hearing on the claim was conducted in September 1991. At the outset of the hearing, counsel for Dade announced he was stipulating that Barry's seizure condition was compensable. Even though Dade's counsel believed the seizures were a preexisting condition, he explained to the judge of compensation claims (JCC) that he had been unable to develop documentary evidence to support the belief.

The deposition of Dr. Ballweg was admitted into evidence before testimony was heard on other matters, such as the amount of benefits to be paid. Dr. Ballweg testified in her deposition that she examined Barry after the accident and performed two EEGs. The doctor diagnosed a convulsive seizure disorder, which she treated with medication. The doctor was asked whether there was a causal relationship between the seizures and the December 1989 accident. Dr. Ballweg responded, "I have to believe that the two are related, and that is relative to a lack of the previous history of seizures and the occurrence of the injury as stated." The doctor said Barry "denied ever having had previous seizures during adult or childhood." Dr. Ballweg explained "we know that there's a relationship between somebody who has an impact seizure and the ability to sustain further seizures, and indeed that's what we see in this patient, by her history.... [W]e can only go by what the history was, and the history was that she had two seizures at the time of the impact." The doctor testified generally that it would be helpful to have more background records of Barry's medical history, which could indicate the seizures occurred before the accident.

Based on the stipulations of the parties, the JCC ordered Dade to pay temporary partial disability benefits and medical bills.

Dade filed a motion to stay entry of the order and reopen the hearing for newly discovered evidence. Dade alleged that although Barry testified that she never had a seizure prior to the December 1989 accident, "[t]he employer/self-insured has just recently discovered that in 1984 the Claimant was involved in an automobile accident wherein she sustained a serious head injury and that at the time of this [1984] accident she gave a history of being an epileptic."

The JCC entered an order denying the motion to stay entry of the final order on the ground the final order was already entered nine days prior to the motion to stay. The JCC further explained that after reviewing Dr. Ballweg's testimony, "I ... find that the purported newly discovered evidence would probably not change the outcome and the award of benefits. Dr....